Headlines

Summary

The change was implemented at air and sea ports on April 30 at Charlotte-Douglas International Airport, Orlando International Airport, Las Vegas Airport, Chicago O'Hare, Miami International Airport, and Houston Bush Intercontinental Airport. It will be rolled out across the country through May 21.

The rule revises the prevailing wage methodology used by the DOL to calculate certain prevailing wages paid to H-2B workers and U.S. workers recruited in connection with an H-2B Application for Temporary Employment Certification.

1. CBP Rolling Out Automation of I-94 Arrival/Departure Records

U.S. Customs and Border Protection (CBP) announced on April 26, 2013, that it has automated the Form I-94, Arrival/Departure Record. The I-94 provides international visitors evidence that they have been lawfully admitted to the United States, which is necessary to verify registration, immigration status, and employment authorization. Affected visitors will no longer need to fill out a paper form when arriving in the U.S. by air or sea. CBP will now generate records of admission using traveler information already transmitted electronically.

The change was implemented at air and sea ports on April 30 at Charlotte-Douglas International Airport, Orlando International Airport, Las Vegas Airport, Chicago O’Hare, Miami International Airport, and Houston Bush Intercontinental Airport. It will be rolled out across the country through May 21.

Travelers wanting a hard copy or other evidence of admission may access that information online at http://www.cbp.gov/I94 if they did not receive a hard copy attached to their passport. From there, individuals can print a copy of the I-94 based on electronically submitted data, including the I-94 number from the form, to provide as necessary to benefit providers or as evidence of lawful admission.

The Social Security Administration has updated its Program Operations Manual System (POMS), effective April 30, 2013, adding “admission stamp in unexpired foreign passport” to its list of acceptable primary evidence of identity. The updated SSA information, “List of Documents in Priority of Acceptability for Use as Evidence of Identity,” says that this is considered a separate document from an unexpired passport.

The updated SSA information in POMS refers to “Policy for Number of Documents Required for an SSN Card,” which explains:

An I-551 stamp (Temporary Lawful Permanent Resident stamp) or a U.S. immigration stamp in the applicant’s foreign passport and the foreign passport are two separate documents.

Likewise, an Arrival Departure Record (Form I-94) stapled in a foreign passport and the foreign passport are two separate documents.

A machine-readable immigrant visa (MRIV) issued by the U.S. Department of State and placed in the foreign passport and the foreign passport are two separate documents.

The Department of Homeland Security (DHS) admission stamp placed partially on the MRIV is a third document.

While you can use the immigration and admission stamp to establish identity and lawful alien status, you can use the foreign passport to establish age.

SSA has also posted policy information on new types of nonimmigrant evidence, including the admission stamp and recently introduced versions of the I-94 Arrival/Departure record, including U.S. Customs and Border Protection’s I-94 website printout and the Global Entry I-94, and has added a parole stamp placed in an unexpired foreign passport as acceptable evidence of parole status for a Social Security number (SSN).

SSA also updated the 10-day hold procedure for verifying evidence of status for an SSN using the Systematic Alien Verification for Entitlements (SAVE) program through the enumeration system (SSNAP). SSA said it is making these changes as a result of Department of Homeland Security (DHS) automation of the I-94 Arrival/Departure record and recent DHS information regarding the real-time verification of alien evidence. SSA has eliminated the 10-day hold policy for all DHS evidence except DHS Forms N-550/N-570 (Certificate of Naturalization) and N-560/N-561 (Certificate of Citizenship).

Interestingly, DOL has received 36,660 PERM applications through March 31, 2013. According to the DOL, these numbers reflect a 20% increase from FY 2012. Of those still pending, 58% are in Analyst Review, 30 % are in Audit Review, and 11% in appeal.

5. No Wages Due If H-1B Employee Is Voluntarily Nonproductive, ALJ Finds

The Department of Labor’s Office of Administrative Law Judges recently found that North Shore School for the Arts (NSSA) did not owe an H-1B nonimmigrant employee back pay for voluntarily nonproductive “work” time. NSSA had employed Natsuko Imai as a piano/music teacher for 20 hours per week at a wage rate of $40 per hour.

Among other things, an NSSA representative stated that Ms. Imai took some students into her own private studio rather than continuing to work with them as NSSA students, which was against NSSA policy. The representative also stated that Ms. Imai was uncooperative in working to get more students. The representative made suggestions for doing so that Ms. Imai rejected. Despite claims to the contrary, Ms. Imai was trying to get into graduate school and spent much of her time practicing piano rather than teaching or performing related outreach duties.

Administrative Law Judge (ALJ) Stephen M. Reilly noted that wages are to be paid for nonproductive time if the employee is “ready, willing, and able” to work and the nonproductive time resulted from a decision of the employer. He found Ms. Imai’s testimony “rife with evasiveness, equivocation and forgetfulness.” He said that her demeanor during testimony “raised questions regarding her truthfulness.” He also found her disregard of the law “troubling” because she admitted to working while on an F-1 student visa and also to working outside NSSA while she was in H-1B status, which are violations. She further admitted that she did not report income for tax purposes. She said she knew these actions were against the law when she did them. ALJ Reilly gave her testimony “little weight” because of these factors and her evasive answers. For example, the ALJ noted that she said that obtaining a doctoral degree was not her plan, but acknowledged that she had applied to doctoral programs and sought and obtained several recommendations for that purpose.

ALJ Reilly also noted that although Ms. Imai spent long hours at the school, her focus was on practicing the piano, not teaching or performing her job duties. He found that Ms. Imai did not make herself available to perform her job duties and thus was not ready, willing, and able to work. The ALJ did not hold the NSSA’s representative blameless either, stating that she was “blinded to reality.” ALJ Reilly found the employer responsible for back pay for work performed (74.5 hours plus interest, for a total of $2,980), but not for the hours in dispute during which Ms. Imai was not performing work.

On April 24, 2013, the Departments of Labor (DOL) and Homeland Security published a joint interim final rule on wage methodology for the temporary non-agricultural employment H-2B program. The rule revises the prevailing wage methodology used by the DOL to calculate certain prevailing wages paid to H-2B workers and U.S. workers recruited in connection with an H-2B Application for Temporary Employment Certification.

The interim final rule was published in response to a court order issued by the U.S. District Court for the Eastern District of Pennsylvania on March 21, 2013, in Comite de Apoyo a los Trabajadores Agricolas et al v. Solis, 09-cv-00240 (E.D. Pa). The court order vacated a portion of the 2008 wage methodology rule dealing with the way the DOL determines the prevailing wage when relying on the Bureau of Labor Statistics’ Occupational Employment Statistics (OES) survey, and provided the Department of Labor with 30 days to come into compliance.

On April 24, 2013, the effective date of the interim final rule, the DOL also resumed processing both pending H-2B prevailing wage requests and H-2B applications for temporary labor certification based on the OES wage survey data, in accordance with standards set in the interim final rule.

USCIS also has resumed processing of all Form I-129 (Petition for Nonimmigrant Worker) H-2B petitions for temporary nonagricultural workers. On March 22, 2013, USCIS temporarily suspended adjudication of most I-129 H-2B petitions while the government considered appropriate action in response to the court order.

The DOL released frequently asked questions to assist filers in complying with the requirements of the interim final rule. The FAQs address the applicability of the new prevailing wage methodology, employer wage obligations, requests for review, and processing pending H-2B prevailing wage requests and H-2B applications for temporary labor certification.

7. Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

8. Klasko News

KILP 2013 Annual Spring Seminar

Klasko Immigration Law Partners’ annual Spring educational seminar “Immigration 2013: Change is in the Air” was held on Tuesday, April 23, 2013 at the Radisson Plaza-Warwick Hotel. This year’s seminar focused on sessions including:

Ron will serve as a panelist on “Hot Immigration Issues for Academic Healthcare Institutions,” a session on May 30. This session will examine immigration issues identified by NAFSA’s Healthcare Institutions Interest Group and will focus on advising medical, nursing, and healthcare students, trainees, residents, faculty, and allied healthcare professionals on B-1, F-1, J-1, H-1B, O-1, TN visas, J waivers, and permanent residency.

Elise will serve as chair person for “The Government is Watching: Site Visits, Audits, and Inspections” a session at the NAFSA Annual Conference on May 31. As universities are facing site visits, audits, and inspections of their student and scholar programs and employment records more than ever, this panel will cover recent developments and how to develop an institutional response policy.

Elise will serve as a panelist for the session “H-1B, PERM, and Employment-Based Hot Topics.” This session will highlight and review the recent regulatory developments and hot topics related to the employment of faculty and staff in higher education. Topics will include H-1B and I-129 processing, prevailing wage determinations, and iCERT, PERM, and adjustment of status issues. The session is designed for experienced practitioners.

Recent Speaking Engagements

Ron spoke to researchers at Thomas Jefferson University on May 8, 2013 and discussed H-1B visas and quota, J-1 visas and waivers, O-1 visas and other related topics of interest to scholars and researchers.

Ron served as moderator for the panel discussion “Creating and Representing Regional Centers” at the AILA Mexico City District Chapter EB-5 Conference titled “Show Me the Jobs” on May 2, 2013 in Miami Beach, FL. For more information on the EB-5 visa, visit our EB-5 Resource Center at www.eb5immigration.com.

William A. Stock (Bill) participated in the “Collective Day of Action” at Drexel University on April 19 by speaking at a panel discussion on immigration reform. The event, nationally coordinated by The Partnership for a New American Economy, aims to emphasize the importance of immigration reform and its role in higher education.

Matthew T. Galati (Matt) presented “Immigration Law: Employment of Foreign Nationals and Worksite Enforcement Issues” at the Wharton Business School on Wednesday, April 17. Matt discussed:

Hiring foreign workers

Nonimmigrant visas that allow employment

Green cards through employment

Form I-9 and its requirements

Discrimination in the hiring process

Increased enforcement actions

E-Verify

For more on this talk or to request a copy of the PowerPoint presentation, write to Matt at mgalati@klaskolaw.com.

Ron spoke at Abington Memorial Hospital on April 18, 2013. During this meeting, he met with medical residents and discussed the unique immigration needs that pertain specifically to physicians. He spoke about the permanent resident options for medical residents, and held a Q and A session following the talk.

Ron served as a panelist on “Using EB-5 Immigrant Visas to Fund Your Real Estate Development,” a webinar on April 9, in collaboration with the American College of Real Estate Lawyers. The panel discussed identifying appropriate real estate projects, how to pick a Regional Center (RC) by considering geography, type of investments, principals’ track record, and cost, establishing your own Regional Center, and renting a Regional Center, among other pertinent topics of interest to real estate lawyers. For information on how to get the EB-5 visa to work for you, write to Ron at rklasko@klaskolaw.com.

Ron spoke to MBA students at the Wharton Business School on Tuesday, April 2, 2013. To review the event webpage with the PowerPoint presentation and relevant articles, click here.